PUBLISHED OPINION COVER SHEET

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

DECISION AND ORDER

JUDGE
William E. Smith, U.S. District Judge
FILED:
February 27, 2003

NARRAGANSETT INDIAN TRIBE )

OF RHODE ISLAND )
Plaintiff, )
)
v. ) C.A. No. 02-301S
)
ELAINE L. CHAO, in her )
capacity as Secretary of Labor,)
United States of America )
Defendant.

ATTORNEY(S) FOR PLAINTIFF(S)

NARRAGANSETT INDIAN TRIBE OF RHODE ISLAND

John F. Killoy, Jr., Esq.

74 Main Street
Wakefield, RI 02879

ATTORNEY(S) FOR DEFENDANT(S)

ELAINE L. CHAO, in her capacity as Secretary of Labor,

United States of America

Margaret E. Curran, Esq., U.S. Attorney

Anthony C. DiGioia, Esq., Assist. U.S. Attorney
50 Kennedy Plaza, 8th Fl.
Providence, RI 02903
 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

NARRAGANSETT INDIAN TRIBE )

OF RHODE ISLAND )
)
Plaintiff, )
)
v. ) C.A. No. 02-301S
)
ELAINE L. CHAO, in her )
capacity as Secretary of )
Labor, United States of )
America )
)
Defendant. )

DECISION AND ORDER

The Narragansett Indian Tribe of Rhode Island (the “Tribe”)

and the Rhode Island Indian Council (the “RIIC”) both sought a

grant from the United States Department of Labor (the “DOL”) to

provide job training for Rhode Island’s Native American

population. The funding was available pursuant to § 166 of the

Workforce Investment Act (“WIA”), 29 U.S.C. § 2911. The DOL

awarded the grant for program years 2000 and 2001 to the RIIC

instead of the Tribe. The Tribe initiated this action in order

to seek review of the DOL’s decision, and, in effect, to set

aside the grant to the RIIC or have the Court fashion some other

relief. In turn, the DOL filed a Motion to Dismiss for Lack of

Subject Matter Jurisdiction, which is the matter currently

before the Court. For the following reasons, this Court grants

the DOL’s Motion to Dismiss.

 I. Factual and Procedural Background

A. The Application Process for Grants Under the WIA

The WIA is implemented through DOL regulations, which are

codified at 20 C.F.R. Part 668. The regulations provide a

detailed formula that dictates how a grant officer is to

determine which applicant shall receive the funding. See 20

C.F.R. § 668.200(B)(3).

A dissatisfied applicant for financial assistance may

request administrative review of the grant officer’s decision by

an Administrative Law Judge (“ALJ”). See 29 U.S.C. § 2936(a).

If the dissatisfied applicant prevails on review, the only

available remedy is to be designated as the Act’s grantee for

the remainder of the current grant cycle. See 20 C.F.R.

§ 667.825(a). The ALJ’s decision is the final agency action,

unless a dissatisfied party files a petition for review with the

Administrative Review Board (“ARB”) and the ARB accepts the case

for review. 29 U.S.C. § 2936(b); 20 C.F.R. § 667.830(b). An

ARB decision, issued within 180 days of acceptance, constitutes

final agency action. Where a case is not decided within 180

days of acceptance, the ALJ decision becomes final agency

action. See 29 U.S.C. § 2936(c); 20 C.F.R. § 667.830.

A grant applicant that is dissatisfied with the DOL’s final

decision may obtain judicial review in the appropriate Circuit

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Court of Appeals by filing a petition for review within thirty

days of final agency action. See 29 U.S.C. § 2937(a)(1); 20

C.F.R. § 667.850.

B. The Tribe’s Attempt to Obtain a WIA Grant

The Tribe applied to the DOL for a WIA grant for the years

2000 and 2001 to serve individuals on its reservation in

Charlestown, Rhode Island, and throughout the State of Rhode

Island. At that time, the RIIC was already serving as the WIA

grantee for the State of Rhode Island. A DOL grant officer

determined that the Tribe was not entitled to receive priority

as a WIA grantee. As a result, the grant officer conducted a

competitive grantee selection process as provided by 20 C.F.R.

§ 668.250(b)(2)-(3). At the conclusion of that process, the

grant officer determined that the RIIC was entitled to continue

as the WIA grantee for Rhode Island. On March 1, 2000, the

grant officer made her final designation of RIIC as the grantee.

The Tribe, dissatisfied with the grant officer’s decision,

petitioned for its administrative review by an ALJ. On

December 20, 2000, the ALJ issued a Decision and Order denying

the Tribe’s Petition for Review. Following that denial, the

Tribe filed an additional Petition for Review with the ARB on

January 12, 2001. On July 20, 2001, the ARB issued an order

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affirming the ALJ’s denial of the Tribe’s Petition for Review.

The ARB’s decision constituted the “final decision” in the case

for purposes of 29 U.S.C. § 2936(c).

The Tribe did not appeal the final agency action to the

First Circuit Court of Appeals, as required by 29 U.S.C. §

2937(a)(1). Instead, the Tribe initiated this action seeking a

declaratory judgment (Count I), injunctive relief (Count II),

and review under the Administrative Procedure Act (“APA”), 5

U.S.C. § 706 (Count III). The DOL responded by filing the

Motion to Dismiss, which is the matter now before the Court.

II. Standard of Review

Rule 12(b)(1) provides for dismissal of an action if the

court lacks jurisdiction over the subject matter of the action.

Because federal courts are courts of limited subject matter

jurisdiction, “the preferred – and often the obligatory –

practice is that a court, when confronted with a colorable

challenge to its subject-matter jurisdiction, should resolve

that question before weighing the merits of a pending action.”

Morales Feliciano v. Rullan, 303 F.3d 1, 6 (1st Cir. 2002). See

Donahue v. City of Boston, 304 F.3d 110, 117 (1st Cir. 2002)

(citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,

101-02, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998)).

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 Challenges to an action, such as mootness and lack of

federal question jurisdiction are properly asserted in a Rule

12(b)(1) motion to dismiss. See D.H.L. Assocs., Inc. v.

O’Gorman, 199 F.3d 50, 54 (1st Cir. 1999)(mootness); BIW Deceived

v. Local S6, 132 F.3d 824, 830-31 (1 st Cir. 1997)(federal

question jurisdiction). When considering a 12(b)(1) motion, the

court may consider materials outside the pleadings. Gonzalez v.

United States, 284 F.3d 281, 288 (1st Cir. 2002)(“The Court can

look beyond the pleadings – to affidavits and depositions – in

order to determine jurisdiction”).

III. Discussion

The DOL contends in its motion that the Tribe’s Complaint

should be dismissed because the Court lacks subject matter

jurisdiction. The DOL contends that the only procedural avenue

available to the Tribe with respect to its denial of the WIA

grant was to appeal to the First Circuit within thirty days of

the ARB’s denial of its Petition for Review. See 29 U.S.C. §

2937(a)(1); 20 C.F.R. § 667.850. The ARB’s denial occurred on

July 20, 2001. The Tribe was required to make any appeal of the

grant denial to the First Circuit on or before August 20, 2001,

or waive any right to appeal. Since the Tribe failed to avail

itself of this procedure, the DOL contends that the Court lacks

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subject matter jurisdiction to entertain the Tribe’s attempt to

seek additional review.

The Tribe asserts numerous defenses to the DOL’s Rule

12(b)(1) motion. First, the Tribe contends that the Complaint

seeks declaratory and injunctive relief, which were not

available to it at the administrative level. Second, they say

that the Complaint alleges that the DOL has improperly enacted

and applied its WIA regulations, so as to conflict with the

Indian Self-Determination and Education Assistance Act

(“ISDEA”), 25 U.S.C. § 450, et seq. As a result, the Tribe

argues, the Court has subject matter jurisdiction because the

APA permits review of these inconsistencies. This Court

disagrees.

Declaratory and Injunctive Relief

Counts I and II of the Tribe’s Complaint seek declaratory

and injunctive relief. Specifically, the Tribe asks the Court

to void the DOL’s award of the grant to the RIIC for the years

2000 and 2001, or in the alternative to enjoin the funding

provided to the RIIC and transfer it to the Tribe. This the

Court cannot do.

This Court is powerless to award any meaningful relief for

the grant cycles that have passed. As a result, the Tribe’s

causes of action are moot. See Maine v. U.S. Dep’t of Labor,

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770 F.2d 236, 239 (1st Cir. 1985). In Maine, the DOL had

selected the Penobscott Consortium as a grantee to provide job

training services. Maine’s Department of Labor, a disappointed

applicant, appealed the denial. The First Circuit held that the

denial of the grant under the Job Partnership and Training Act1

was moot because the court could not award effective relief.

The court reasoned that because the U.S. Department of Labor

does not allow for relief once a grant period has ended, the

court could not then make a determination as to the grant

because there would be no grant funds to allocate. Id. Like

the Job Training and Partnership Act, the WIA specifically

prohibits the DOL from awarding any grant funds once the term of

the grant at issue has expired. See 20 C.F.R. § 667.825(a).

Since the grant period for the years 2000 and 2001 expired on

June 30, 2002, the Court has no ability to grant any relief.

The Court also has no power to grant prospective relief with

respect to future grant awards. In Maine, the First Circuit

rejected just such a request. Id. at 240. The court held as

follows:

Maine Labor argues that, even if it cannot obtain

relief under DOL’s existing policies or regulations,
we should create some form of relief - relief that
would involve its receiving some kind of advantage or

1
The Job Partnership and Training Act, 29 U.S.C. § 1672, was
the statutory predecessor of the Workforce Investment Act.

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 a direct award in a later grant period. But, we
cannot do so.... [W]e have found no authority showing
that a court has the power to create this type of
relief – relief that would take a later grant away
from a later winner.

Id. Other courts have followed the First Circuit and prohibited

the District Courts from granting prospective equitable relief

under the WIA. United Urban Indian Council, Inc. v. U.S. Dept.

of Labor, 31 Fed. Appx. 627, 2002 WL 442378, at *2 (10th Cir.

2002). Consequently, this Court holds that it has no power to

fashion any prospective relief under the WIA, and the Tribe’s

claims for declaratory and injunctive relief are therefore moot.

Review Under the Administrative Procedure Act

The Tribe also claims that the DOL’s Motion to Dismiss

should be denied because its Complaint seeks review under the

APA. However, courts have frequently held that the APA does not

provide an independent source of subject matter jurisdiction.

Jordan Hosp., Inc. v. Shalala, 276 F.3d 72, 77 n.4 (1st Cir.

2002); Conservation Law Found., Inc. v. Busey, 79 F.3d 1250,

1261 (1st Cir. 1996).

The Tribe claims that because the ALJ and the ARB could not

address the constitutionality or propriety of the regulations

promulgated under the WIA, this Court must exercise jurisdiction

over the matter in order to rule on those issues. Again, this

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Court disagrees. The administrative review scheme provided in

the WIA provides dissatisfied applicants with a direct appeal to

the First Circuit. 29 U.S.C. § 2937(a)(1); 20 C.F.R. § 667.850.

After receiving final agency action in this matter, the Tribe

could have gone right to the top, so to speak, and raised its

constitutional and regulatory enactment arguments at the Circuit

Court level. But, for reasons that are not clear, it chose not

to make a timely appeal. See Eastern Bridge, LLC v. Chao, No.

02-1908, 2003 WL 329037, at *5 (1 st Cir. Feb. 14, 2003). In

Eastern Bridge, the plaintiff brought claims subject to

administrative review directly to the district court, which

dismissed the matter for lack of subject matter jurisdiction.

On appeal, the plaintiff asserted that it did not need to

exhaust administrative remedies because of the constitutional

questions raised in the complaint. Id. The First Circuit

rejected this argument when it held:

[T]his invocation of constitutional authority, without

more, cannot breathe life into a theory already
pronounced dead by the Supreme Court in binding
precedent. At the termination of administrative
review, plaintiffs’ constitutional claims ‘can be
meaningfully addressed in the Court of Appeals.’
Thunder Basin, 510 U.S. at 215 (stating that ‘the
general rule disfavoring constitutional adjudication
by agencies is not mandatory’). Additionally, the
present constitutional claim is really just a
recharacterization of their administrative claim, and
we will not allow plaintiffs to circumvent the
statutory review process with an agile game of word
play. See Heckler v. Ringer, 466 U.S. 602, 622-24,

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 104 S. Ct. 2013, 80 L. Ed. 2d 622 (1984) (rejecting
respondents’ attempt to obtain jurisdiction by
characterizing his claim as arising under the
Constitution rather than under the Social Security
Act).

Id. As in Eastern Bridge, the Tribe is simply attempting to use

the APA as an end run around the specific judicial review

provisions provided by Congress in the WIA. If the Tribe had

made a timely appeal, the First Circuit would have been able to

address all of its challenges to the WIA’s regulatory scheme.

This Court will not breathe life into an appeal that died when

the Tribe chose not to exercise its right to appeal.

IV. Conclusion

Based on the reasons stated above, the United States

Department of Labor’s Motion to Dismiss for Lack of Subject

Matter Jurisdiction is GRANTED.

____________________________
William E. Smith
United States District Judge

Dated:

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